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elni
In many countries lawyers
are working on aspects of
environmental law, often as
part of environmental initiatives and organisations or as
legislators. However, they
generally have limited contact with other lawyers abroad, in spite of the fact that
such contact and communication is vital for the successful and effective implementation of environmental
law.
Therefore, a group of
lawyers from various countries decided to initiate the
Environmental Law Network International (elni) in
1990 to promote international communication and cooperation worldwide. Since
then, elni has grown to a
network of about 350 individuals and organisations from
all over the world.
Since 2005 elni is a registered non-profit association
under German Law.
elni coordinates a number
of different activities in
order to facilitate the communication and connections
of those interested in environmental law around the
world.
The Coordinating Bureau was originally set up at and financed by ÖkoInstitut in Darmstadt, Germany, a nongovernmental, non-profit research
institute.
Three organisations currently share
the organisational work of the network:
Öko-Institut, IESAR at the University of
Applied Sciences in Bingen and sofia,
the Society for Institutional Analysis,
located at the University of Darmstadt.
The person of contact is Prof. Dr. Roller
at IESAR, Bingen.
C o o rd i n a t i n g B u re a u
The elni Review is a bi-annual, English language law review. It publishes
articles on environmental law, focussing
on European and international environmental law as well as recent developments in the EU Member States. It is
published by Öko-Institut (the Institute
for Applied Ecology), IESAR (the Institute for Environmental Studies and
Applied Research, hosted by the University of Applied Sciences in Bingen) and
sofia (the Society for Institutional
Analysis, located at the University of
Darmstadt). The Coordinating Bureau is
currently hosted by the University of
Bingen. elni encourages its members to
submit articles to the Review in order to
support and further the exchange and
sharing of experiences with other members.
elni Review
elni conferences and fora are a core
element of the network. They provide
scientific input and the possibility for
discussion on a relevant subject of environmental law and policy for international experts. The aim is to gather
together scientists, policy makers and
young researches, providing them with
the opportunity to exchange views and
information as well as to develop new
perspectives.
e l n i C o n f e re n c e s a n d F o r a
The aim of the elni fora initiative is to
bring together, on a convivial basis and
in a seminar-sized group, environmental
lawyers living or working in the Brus-
sels area, who are interested in sharing
and discussing views on specific topics
related to environmental law and policies.
• Access to justice in Environmental
Matters and the Role of NGOs, de
Sadeleer/Roller/Dross, Europa Law
Publishing, 2005.
• Environmental Law Principles in
Practice, Sheridan/Lavrysen (eds.),
Bruylant, 2002.
• Voluntary Agreements - The Role of
Environmental Agreements, elni (ed.),
Cameron May Ltd., London, 1998.
• Environmental Impact Assessment European and Comparative; Law and
Practical Experience, elni (ed.),
Cameron May Ltd., London, 1997.
• Environmental Rights: Law, Litigation
and Access to Justice, Deimann /
Dyssli (eds.), Cameron May Ltd.,
London, 1995.
• Environmental Control of Products
and Substances: Legal Concepts in
Europe and the United States,
Gebers/Jendroska (eds.), Peter Lang,
1994.
• Dynamic International Regimes: Institutions of International Environmental
Governance, Thomas Gehring; Peter
Lang, 1994.
• Environmentally Sound Waste Management? Current Legal Situation and
Practical Experience in Europe,
Sander/ Küppers (eds.), P. Lang, 1993
• Licensing Procedures for Industria
Plants and the Influence of EC Directives, Gebers/Robensin (eds.), P. Lang,
1993.
• Civil Liability for Waste, v.
Wilmowsky/Roller, P. Lang, 1992.
• Participation and Litigation Rights of
Environmental Associations in
Europe, Führ/ Roller (eds.), P. Lang,
1991.
No 2/2007
Publications series
On the elni website www.elni.org one
finds news of the network and an index
of articles. It also indicates elni activities
and informs about new publications.
Internship possibilities are also published online.
E l n i We b s i t e : e l n i . o r g
elni, c/o Institute for Environmental Studies and Applied Research
FH Bingen, Berliner Straße 109, 55411 Bingen/Germany
www.elni.org
ENVIRONMENTAL
LAW NETWORK
INTERNATIONAL
RÉSEAU
INTERNATIONAL
DE DROIT DE
L´ENVIRONNEMENT
INTERNATIONALES
NETZWERK
UMWELTRECHT
Ralph Hallo
The Aarhus Convention in operation
Luc Lavrysen
Aarhus related cases of the Belgian Constitutional Court
Thomas Alge/Dieter Altenburger
Highest court abolishes EIA-permit
˘
´
´
Public Interest Litigation
in Environmental
Matters
Dora Schaffrin/Michael Mehling
Irina Zodrow/Cathrin Zengerling
Opening the Doors to Justice - Strengthening Public Access
Christoph Holtwisch
Asia-Pacific Partnership on Clean Development and Climate
Carlos da Silva Campos
Waste, Product and By-product in EU Waste Law
Environmental Law Network International
2/07
CONTENTS
Editorial .......................................................................................................................................................................... 1
elni forum on WEEE revison
The Aarhus Convention in operation: EEB Survey Initial Results.................................................................................. 2
Ralph Hallo
Presentation of Aarhus-related cases of the Belgian Constitutional Court..................................................................... 5
Prof. Dr. Luc Lavrysen
Highest Austrian court abolishes EIA permit - but EIA appeal proceeding with regard to transport projects appears ineffective................................................................................................................................................. 9
Thomas Alge, Dieter Altenburger
Public Interest Litigation in Environmental Matters: A German Perspective ................................................................ 13
Dora Schaffrin and Michael Mehling
Opening the Doors to Justice - The Challenge of Strengthening Public Access.......................................................... 20
Irina Zodrow LL.M and Cathrin Zengerling LL.M.
Asia-Pacific Partnership on Clean Development and Climate: Blockade or Impetus for the International Climate
Regime? .......................................................................................................................................................... 23
Christoph Holtwisch
Waste, Product and By-product in EU Waste Law....................................................................................................... 28
Carlos da Silva Campos
elni Members and Networks: J&E - More than just an NGO........................................................................................ 45
Pavel Černý
Imprint ......................................................................................................................................................................... 47
Authors of this issue..................................................................................................................................................... 47
elni Membership........................................................................................................................................................... 48
2/07
Environmental Law Network International
Waste, Product and By-product in EU Waste Law
Carlos da Silva Campos
1 Foreword: definitions and Roman wisdom
Wisdom sounds better when it is carried by irony.
Omnis definition in jure periculosa est - all legal
definitions are dangerous - is a very common sentence in the legacy of Roman Law. This classic
sentence is completed by “parum est enim ut non
subverti posset 1 – because there is little that cannot
be subverted. As Julius von Kirchmann wrote, drei
berichtigende Worte des Gesetzgebers, und ganze
Bibliotheken werden zu Makulatur - three rectifying
words from the legislators, and whole libraries can
turn into waste paper 2 . The above quotations came
to my mind when the European Parliament voted to
include a “by-product” definition in the Waste
Framework Directive 3 . A few days later, the Commission came up with an “Interpretative Communication” 4 . Roman wisdom again: Omnis innovatio
plus novitate perturbat quam utilitate prodest. Every
innovation disturbs more by its novelty than it benefits by its utility. The purpose of this article is to find
a way of exploring the “new” definition of byproducts in order to find more utility than disturbance.
2 The literal waste definition
The legislative process for the future Waste Framework Directive started in late 2005 with a proposal
from the Commission, which aimed “to optimize the
provisions of Directive 75/442/EEC whilst maintaining its essential structure and key provisions”. The
2006/12/EC Directive appeared as a re-codification
of the previous Waste Directive 5 . The original
75/442/EEC Directive 6 defined waste as “any substance or object which the holder disposes of or is
required to dispose of pursuant to the provisions of
national law in force”. The word “disposes” was
used in early times when “disposal” meant “the
1
2
3
4
5
6
28
Digesto, 50.17.202. Latin text available at
http://www.thelatinlibrary.com/justinian/digest50.shtml.
Julius von Kirchmann (1848), Die Wertlosigkeit der Jurisprudenz als
Wissenschaft. There is a recent edition from Manutius Verlag, Heidelberg,
2000.
The
amendments
voted
by
PE
can
be
read
at
http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//ep//TEXT
+TA+P6-TA-2007-0029+0+DOC+XML+V0//EN&language=EN.
The Procedure File is available at http://www.europarl.europa.eu/
oeil/FindByProcnum.do?lang=2&procnum=COD/2005/0281.
Available
at
http://eur-lex.europa.eu/LexUriServ/site/en/com/2007/
com2007_0059en01.pdf.
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2006:114:0009:01:EN:HTML.
Original text available at http://eur-lex.europa.eu/LexUriServ/
LexUriServ.do?uri=CELEX:31975L0442:EN:HTML.
Consolidated text (after several modifications) available at http://eurlex.europa.eu/LexUriServ/site/en/consleg/ 1975/L/01975L044220031120en.pdf.
collection, sorting, transport and treatment of waste
as well as its storage and tipping above or under
ground”, together with “the transformation operations necessary for its re-use, recovery or recycling”. This was before the fundamental division
between “disposal” and “recovery”. Later on, the
91/156/EEC Directive amended the previous
75/442/EEC Directive, replacing “dispose” by “discard”, adding the “intention” element to the definition, and introducing a list of 16 “Categories of
Waste” [Annex I, inspired on the “Table 1” of the
OECD Council Decision C(88)90(Final) 7 ] and Annexes IIA and IIB, for disposal and recovery, respectively. The essential sentence of the waste definition
was kept in the 2006/12/EC Directive and will
probably be kept in the future Waste Framework
Directive. In essence, the waste definition remains
unchanged, based on the keyword “discard”, as
act, intention or obligation. Not surprisingly, similar waste definitions can be found in most of the EU
Member States and even outside of Europe. In the
U.S.A., literal definitions are quite different and are
more or less descriptive 8 . Despite all the criticisms,
the literal definition has survived since the
75/442/EEC Directive. Most of the attempts to design “decision trees” or “check lists” failed. Due to
the large amount of conditions and considerations,
the attempts to apply “universal decision schemes”
to very different cases can result in a “Pandora effect”. A new case, a new example, opens up new
questions and distinctions. Dictionaries don’t help
much, because common definitions tend to associate
7 The OECD Council Decision C(88)90/Final defines waste as “materials,
other than radioactive materials, intended for disposal for reasons specified in Table 1” and disposal as “any of the operations specified in Table
2”. Table 1 – “Reasons why material are intended for disposal” includes
sixteen categories of waste specified in Table 1. The decision was
adopted in 27 May 1988 and amended on 28 July 1994 by Council Decision C(94)152/Final (text available at http://webdomino1.oecd.org/horizontal/oecdacts.nsf/linkto/C(88)90). In the amended version, Table 2 is a
parallel of the Annexes IIA and IIB of the 91/156/EEC Directive.
8
The US Code (T.42, Ch.82, Sub-Ch.I-Gen. Provisions 6903,27) defines
solid waste as “any garbage, refuse, sludge from a waste treatment plant,
water supply treatment plant, or air pollution control facility and other discarded material, including solid, liquid, semisolid, or contained gaseous
material resulting from industrial, commercial, mining, and agricultural operations, and from community activities, but does not include solid or dissolved material in domestic sewage, or solid or dissolved materials in irrigation return flows or industrial discharges which are point sources subject to permits under section 1342 of title 33, or source, special nuclear, or
byproduct material as defined by the Atomic Energy Act of 1954, as
amended (68 Stat. 923) (42 U.S.C. 2011 et seq.)”. See also the descriptive definition in the Code of Federal Regulations, Su-Ch. I, Part
243(1995).
Environmental Law Network International
waste with worthless, useless and thrown away
things – and do not see it as a resource.
3 What is waste and what is not
For some authors, the waste definition remains elusive and does not cover all circumstances with certainty by far 9 . In any case, the controversy contributes to the development of the Waste Law. The socalled “case-by-case approach” is part of the law
creation process. The actual waste definition is much
more than the wording of the Directives and Regulations. It carries all the ECJ rulings (a list of the “EC
Waste Definition Cases” can be found in the Annex
of this article) and the doctrine produced on the
matter 10 .
3.1 The irrelevance of “economic reutilization”
The distinction between waste and product seems
easy if seen from an individual point of view. But
“waste” questions always involve more than an
individual. One man’s waste is another man’s treasure… In ancient times, waste was considered as
valueless and out of the market. Res derelictæ –
abandoned thing. In this sense, today’s waste is no
longer waste. Nowadays, all waste can be expressed
9
Stephan Tromans (2001 ), EC Waste Law – A Complete Mess?, in
Journal of Environmental Law (Oxford University Press), Vol. 13,2, pp.
133-156.
10 Just a few examples: Jurgen Fluck (1994), The Term Waste in EU Law,
European Environmental Law Review, 79, 81; Llona Cheyne, M. Purdue
(1995), Fitting Definition to Purpose: the Search for a Satisfactory Definition of Waste, Journal of Environmental Law, Vol 7, 2, pp. 149-168; Geert
van Carlster (1997), The EC definition of Waste: The Euro Tombesi Bypass and the Basel Relief Routes, European Business Law Review, MayJune 1997, pp. 137-143; Laurent Bontoux, Fabio Leone (1997), The legal
definition of waste and its impact on waste management in Europe, EUR
17716 EN, European Commission - Joint Research Centre, Institute for
Prospective Technological Studies, Sevilla,
ftp://ftp.jrc.es/pub/EURdoc/eur17716en.pdf, p. 6; Stephan Tromans (2001
), EC Waste Law – A Complete Mess?, in Journal of Environmental Law
(Oxford University Press), Vol. 13,2, pp. 133-156; Ilona Cheyne (2002),
The Definition of Waste in EC Law, Journal of Environmental Law; vol. 14;
pp. 61-73; Rosalind Malcom and Rosalind Clift (2002), Barriers to Industrial Ecology: The Strange Case of The Tombesi Bypass”, Journal of Industrial Ecology, Vol 6,1, pp. 4-7; Eva Pongrácz (2002), Re-defining the
Concepts of Waste and Waste Management, Academic dissertation/Univ
of Oulu, http://herkules.oulu.fi/isbn9514268210/isbn9514268210.pdf;
David Pocklington (2003), Opening Pandora’s Box: The EU Review of the
Definition of Waste, European Environmental Law Review, Vol 12, 7, p.
204-215; Ludwig. Krämer (2003), The Distinction between Product and
Waste in Community Law , Environmental Liability, vol. II, n° 1, pp. 3-14;
Ludwig. Krämer (2003), Member State’s environmental legislation and the
application of EC Waste law-the classification of waste, Environmental
Liability, 2003, vol. 11, n° 6, pp. 231-233; Nicolas de Sadeleer (2005),
Waste, Products and By-products, Journal of European Environmental &
Planning Law, vol. 1, n° 4, pp. 46-58; Nicolas de Sadeleer (2005), EC
Waste Law or How to Juggle with Legal Concepts Drawing the Line between Waste, Residues, Secondary Materials, By-Products, Disposal and
Recovery Operations , in Journal for European Environmental & Planning
Law, 6/2005, pp. 458-476; Geert van Calster (2006), If ain’t broke, don’t
fix it. Commission efforts to manage the definitions of waste, recycling
and Recovery, and to switch from a waste streams to a materials approach, in elni review, 1-2/2006, pp. 18-22 (Environmental Law Network
International); Vincent Brown et al (2006), The Legal Definition of Waste
in the European Court of Justice – The Problem and the Law, Semple
Fraser, Glasgow,
http://www.semplefraser.co.uk/library/waste_briefings/legal_definition_of_
waste_final_aug_06.pdf.
2/07
in economic terms: positive or negative value. The
word “discard” is no longer opposed to “sell”. If the
material is recyclable or usable as fuel, it might have
economic value. From the recycler point of view, the
recyclable waste is a genuine “raw material”, and so
a market exists with its inherent supply and demand
effects. The “waste market” is nowadays a complex
reality with many more operators than the waste
producer and the waste recycler. The waste-related
businesses include service providers, managing
companies, waste schemes, etc. The “invisible hand”
behind the waste trade is not strictly based on the
intrinsic value of the materials, but rather on its
relative value. The waste trade reached its globalization era, with large amounts of waste being transported from industrialised countries to developing
countries, adding a new dimension to environmental
impacts in both parts of the world. As pointed out by
Bontoux and Leone 11 , the intrinsic value of waste
increased but its relative value has decreased in “rich
countries”. However, side by side with the commercial value of waste itself, there are further driving
factors like the commercial value of waste management services. Therefore, in economic terms, waste
is a “product”. Even the discarded objects are treated
as objects of commerce. The distinction between
waste and product cannot be based on economic
considerations. Not surprisingly, the irrelevance of
the economic value (as criteria to decide whether a
material is waste or not) is the very first sentence we
find in the European case law related to the waste
definition. In its judgment on Joined Cases Vessosso
and Zanetti (1990), the 1st Chamber of the European
Court of Justice (ECJ) held that “the concept of
waste within the meaning of Article 1 of Council
Directive 75/442 and Article 1 of Council Directive
78/319 is not to be understood as excluding substances and objects which are capable of economic
reutilization” 12 . Similar sentences can be found in
most of the waste definition ECJ cases 13 . The irrelevance of the economic aspect of “discard” is
undoubtedly well established in the case law.
3.2 A waste list is not a definition
Waste lists are useful for classification purposes, not
for defining waste. The inclusion of a specific material in a waste list does not mean it is always waste.
On the other hand, if the waste list includes “residual
11
Laurent Bontoux, Fabio Leone (1997), The legal definition of waste and
its impact on waste management in Europe, EUR 17716 EN, European
Commission - Joint Research Centre, Institute for Prospective Technological Studies, Sevilla,ftp://ftp.jrc.es/pub/EURdoc/eur17716en.pdf, p. 6.
12 Vessoso / Zanetti Joined Cases, paragraph 9. See also paragraph 13 and
Zanetti Case, paragraph 13. Complete reference of ECJ “waste cases”
can be found in the Annex of this article.
13 Commission versus FRGermany, paragraph 22; Tombesi, paragraph 54;
Wallonie, paragraph 31; Palin Granit, paragraph 29.
29
2/07
categories” (like “other materials…”), nothing is
excluded. A list is just a list, not a definition. Materials do not become waste by simply being listed. On
the contrary: the list (as all other legal provisions
related to waste management) only applies if the
material is waste. We can find this logic in the wellput “preliminary note” of the European Waste List
(Decision 2000/532/EEC) 14 : “the inclusion of a
material in the list does not mean that the material is
a waste in all circumstances. Materials are considered to be waste only where the definition of waste
in Article 1(a) of Directive 75/442/EEC is met”.
3.3 The so-called “Tombesi bypass”
In the Tombesi Case (C-304/96) 15 , the Advocate
General Jacobs expressed the following opinion:
“Thus the term ’discard’ employed in the definition
of waste in Article 1(a) has a special meaning encompassing both the disposal of waste and its consignment to a recovery operation. The scope of the
term ‘waste’ therefore depends on what is meant by
’disposal operation’ and ‘recovery operation’. […]
The difficulty therefore arises in interpreting and
applying the Directive that the concept of ’recovery
operation’, upon which the definition of waste in
part depends, is not exhaustively defined in the Directive and may be inherently difficult to apply in
some cases. Moreover there is an element of circularity: whether there is ’recovery’ depends on
whether there is ‘waste’, which in turn depends on
whether there is ’recovery’. It seems to me that the
way to overcome that difficulty is not to seek to lay
down a comprehensive definition but to work by
example, in other words to examine whether the
holder of an object or substance consigns or intends
to consign it to one of the operations listed in Annex
16
IIB or to an analogous operation.” This passage
from “discard” to the disposal/recovery operations
and from a legal definition to “work by example”,
was referred to by van Carlster as “the Tombesi
bypass” 17 . The ECJ dealt with a Waste Directive
without definitions for disposal and recovery. The
future Waste Framework Directive will probably
include both, but when there is circularity in definitions – as Advocate General Jacobs pointed out – the
added definitions (recovery, disposal) will not help
much to clarify the pre-existent definition of waste.
14
http://eur-lex.europa.eu/LexUriServ/site/en/consleg/2000/ D/02000D053220020101-en.pdf.
15 http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:61994J0304:EN:HTML.
16 Paragraphs 50 and 55 of the Advocate General Jacobs opinion.
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?
uri=CELEX:61994C0304:EN:HTML.
17 Geert van Carlster (1997), The EC Definition of Waste: The Euro Tombesi
Bypass and the Basel Relief Routes, European Business Law Review,
May-June 1997, pp. 137-143. See also Rosalind Malcom and Rosalind
Clift (2002), Barriers to Industrial Ecology: The Strange Case of The
Tombesi Bypass”, Journal of Industrial Ecology, vol 6,1, pp. 4-7.
30
Environmental Law Network International
On the other hand, the act or intention of discarding
is not always a “consignment to a recovery or disposal operation”. According to legal provisions, the
act of “discard” should be for disposal or recovery,
but these operations are not essential to the waste
definition 18 .
3.4 “Discard with care” versus “get rid of”
No one is free to get rid of undesired things, unless
those things are properly discarded. Article 4º of the
75/442/EEC Directive refers to a compliant discard
obligation. A suitable final destination, such as a
disposal or a recovery operation should be assured
and performed by licensed/authorised operators.
This general obligation operates in different situations. First, when the waste holder is “required to
discard”. Second, when he is not “required” but
decides to discard. The expression “required to discard” refers to legal provisions, an administrative
order or any other normative duty establishing that
the specific material/object should be destined to
disposal or recovery. But the “general obligation” of
“compliant discard” operates even when there is no
“specific obligation”: in the absence of specific
provision, order or duty to discard, the holder is free
to discard or not. However, if he decides to discard,
he has to do it according to the law, and provide a
safe disposal or recovery. In common terms, the
word “discard” means “get rid of”. There is no reason to exclude this meaning from the legal definition
of waste. The word “discard”, when referring to
acts/intentions of the waste holder, includes both
compliant and illegal acts/intentions. If the holder of
an object simply “gets rid of it” (abandonment,
dumping, illegal purpose), then the object/material is
waste. Illegal discard acts (like abandonment or
dumping) are, in general, voluntary acts. But waste
can also result from accidental discards. As ruled in
19
the Contaminated Soil Case , the waste definition
includes materials lost, dumped or spilled by accident, in order to apply legal provisions such as liability provisions. Therefore, the legal compliance
of the act or intention to discard is irrelevant to
decide whether the material is waste or not waste.
3.5 “Discard” as “diversion”
One of the possible ways consists in defining discard
as an act of “diversion”: what makes a material being waste is the act/intention/obliga-tion to divert it
18 As pointed out by the OECD Waste Management Policy Group, “In most
cases the different definitions of waste, enacted by Member countries,
appear not to hinge on the intended destination of a material. The notion
of discarding appears to be the decisive factor in determining whether a
material is a waste in the majority of these different definitions”. OECD
Waste Management Policy Group (1998), Final Guidance Document for
Distinguishing Waste From Non-Waste, ENV/epOC/WMP(98)/Rev 1,
Paris, 23-24 April, 1998, paragraph 10.
19 Contaminated Soil, paragaphs 49 and 50.
Environmental Law Network International
from its present status, normal use, or purpose 20 .
This intuitive idea fits with some simple examples,
but the act of discarding is not necessarily an “act of
diversion” in many other cases. Defining “discard”
as “diversion from the normal purpose” is not a real
definition, but a semantic way of postponing the
definition. Besides, the “normal purpose” is not easy
to define. At this point, the word “discard” remains
undefined. Economic value or utility, waste lists,
final destination and purpose distinctions are not key
elements for defining discard and waste.
3.6 The principle of “wide interpretation”
In several cases, the ECJ ruled that the waste definition cannot be interpreted restrictively. The judgement in the ARCO Chemie Case expresses this principle in clear words 21 . The EJC used the expressions
“cannot be interpreted restrictively” and “obligation… to interpret the concept of waste widely” 22 as
equivalents. In any case, a wide interpretation is not
necessarily an extensive interpretation. In the presence of a legal definition, and no matter how difficult its application may be, there is no need to establish a presumption such as “in case of doubt, it is
waste”. First of all, the concrete situation should be
compared with the legal definition (act, obligation or
intention to discard). Then, the precautionary principle cannot be used as a simple or direct replacement
for “required to discard”. According to the “Principle 15” of the Rio Declaration, the precautionary
principle applies as follows: “In order to protect the
environment, the precautionary approach shall be
widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not
be used as a reason for postponing cost-effective
23
measures to prevent environmental degradatio.” .
Full scientific evidence is not required but precautionary measures should be taken only in the presence of “threats of serious or irreversible damage” –
not a simple and vague risk 24 . On the other hand, the
20 A similar idea can was expressed by Jurgen Fluck (1994), The Term
21
22
23
24
Waste in EU Law, European Law Review, 79, 81. Fluck defined discard
as “an action whose purpose is to desist from using a substance or object
for its original purpose, to liberate it from that intended purpose, or to rededicate it, without immediately allocating it to a new intended purpose,
certain recovery activities being necessary to make it fit once again for its
former purpose (recovery), or the substance or object being definitely
withdrawn from any further use (disposal)”.
ARCO Chemie, paragraphs 37 to 40.
Palit Granit, paragraph, 36.
The United Nations Conference on Environment and Development
(1992), Rio Declaration on Environment and Development , Rio de Janeiro, 3 to 14 June 1992, http://www.unep.org/Documents
.multilingual/Default.asp?DocumentID=78&ArticleID=1163.
The Wingspread Consensus Statement on the Precautionary Principle
includes the following principle: “When an activity raises threats of harm
to human health or the environment, precautionary measures should be
taken even if some cause and effect relationships are not fully established
scientifically”. This is an example of a precautionary approach based on
any risk. The Wingspread Statement was adopted in January of 1998 dur-
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precautionary approach doesn’t mean the exclusion
of factual and scientific evidence. The paragraph
35.3 of “Agenda 21” includes a comprehensive
formulation of the principle 25 . The precautionary
measure is just one of three commandments: (i) to
search for certainty, (ii) to act based on certainties,
and (iii) to act without certainty when certainty is
not reachable in time to avoid threats of irreversible
environmental damage 26 . These general considerations should be applied to waste definition questions.
The waste classification should not be based on
presumptions. Factual evidence should be required
and provided. In the absence of certainty (whether
the material falls in or outside of the legal definition), the precautionary decision (the classification
of the material as waste) should only be adopted if
the opposite decision poses a threat of serious or
irreversible damage. The classification of objects or
materials as waste is not a “general rule”. The
“waste state” is “triggered” by the legal criteria (act,
obligation or intention to discard). The environmental risk is not a “trigger” by itself, because objects or materials can pose environmental risks without being waste. In the absence of an act of discard,
a legal obligation to discard or an intention to discard, the object or material is not waste. When the
holder decides to discard, or if there is evidence of
an intention to discard, the material is waste, no
matter the level of environmental risk derived from
that act or intention. The environmental risk has its
ing a conference organised by the Science and Environmental Health
Network
Foundation
(Racine,
Wisconsin,
USA).
http://www.sehn.org/wing.html.
25 Agenda
21, paragraph 35.3 , Rio Conference, Jan.
1992.http://www.sidsnet.org/docshare/other/Agenda21_UNCED.pdf.
26 About the precautionary principle: Claudia Saladin (2000), Precautionary
Principle in International Law, in International Journal of Occupational and
Environmental Health, Vol. 6, nº 3, Out.Dez. 2000, pp. 270-280; Joel
Tickner, Carolyn Raffensperger e Nancy Myers (2000), The Precautionary
Principle in Action – a Handbook, Science and Environmental Health
Network, http://www.biotech-info.net/handbook.pdf ; Nicholas A. Ashford
(2002), Incorporating Science, Technology, Fairness, And Accountability
in Environmental, Health and Safety Decisions, http://mit.edu/phrj/Ashford_ Revised2_Bologna.doc, p. 3. Rosie Cooney (s.d.),
Precaution and Invasive Alien Species: Challenges at the Interface of the
Trade and Environment Regimes, http://www.iucn.org/congress/documents/outputs/biodiversity-loss/precaution-cooney.pdf; Devra Lee Davis
(1999), Environmental Health and the Precautionary Principle, Massachusetts Precautionary Principle Project Kickoff Meeting de 15 May 1999,
Framingham State College, http://www.healthytomorrow. org/pdf/dr_Davis.pdf, pp. 1-3; Devra Lee Davis (2002), When Smoke Ran Like Water:
Tales of Environmental Deception and the Battle Against Pollution, Basic
Books, New York; Peter T. Saunders (2000), Use And Abuse Of The Precautionary Principle, ISIS – The Institute of Science in Society, London;
Cass R. Sunstein (2002), Risk and Reason: Safety, Law and the Environment, Cambridge Univ. Press, New York. Cass R. Sunstein (2002),
The Paralyzing Principle, in Regulation, winter 2002-2003, pp. 32-37; Peter Van Doren (2003), Letting Environmentalists’ Preferences Count, in
Regulation , Autumn 2003, p. 35; John N. Hathcock (2000), The Precautionary Principle – An Impossible Burden Of Proof For New Products, in
AgBioForum, Vol. 3, Nº 4, 2000, pp. 255-258; European Commission
(2000), Communication from the Commission on the Precautionary Principle, COM (2000)1, Brussels, 2 Feb. 2000,; Laetitia De Jaegher (undated), Management of Uncertainty And The Balance Between Precaution and Innovation: Towards New Strategies for a Sustainable Risk Management, forthcoming in Bio-Science Law Review , Lawtext Publishing,
http://www.netram.net/pdf/man_unc.pdf.
31
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relevance when discard is not a decision or intention
of the holder, but an obligation. It may be a direct
legal provision concerning a specific situation or
material or a general obligation derived from a legal
principle.
3.7 The “further treatment”
The scope of the waste law is the environmental
protection and, ultimately, the sustainability purpose 27 . The reason for applying special provisions
(waste provisions) to discarded materials or to materials intended or required to be discarded is the fundamental need to prevent and/or remediate health
and environmental damages or impacts. Society
cannot afford to tolerate the absolute freedom of
“getting rid of” things. To ensure a sustainable
economy and life, the acts of “discarding” should be
compliant with legal provisions. Therefore, the notion of “discarding” can be expressed from a symmetrical perspective: a material is considered as
waste when it needs further treatment (other
than the “normal use”) to be useful and/or harmless, according to the legal provisions. “Further
treatment” means disposal or recovery (valorisation, recycling, etc.). “Useful” means the readiness for a normal use or processing (the same or
other). Harmless means no harm, or at least a
minimised harm, for the heath and the environment. Before the “further treatment”, the material is
waste and should be safely discarded. “Further
treatment” means a safe disposal (back into the environment) or a safe recovery (back into the market).
The concept “further treatment other than the normal” is rather theoretical and unrealistic. There is no
universal definition for this expression. Typical
waste treatments can be as “normal” as any other
treatments. In some cases, the technical details of the
operation are the same for waste or non-waste. The
so-called “mechanical recycling” of plastics often
involves extrusion, but extrusion is far from being
just a recycling process: it is the main process of
converting plastics. Most of the operations listed in
the Annex IIB of the 75/442/EEC Directive are
technically similar or comparable to “normal” processing operations. What makes the operation be a
“recovery” is not the operation itself, but the material involved in that operation. Therefore, the notions
of “further treatment” or “readiness for a normal use
or processing” should be used to decide whether a
material is waste or product, but the “other than
normal” requisite is an unnecessary – and rather
difficult - distinction. The “further treatment” is
required because the material is waste. But the inverse definition (the material is defined as waste
27 Sustainable development and inter-generational justice are expressions
of the “fundamental rule” of Environment Law, like “pacta sunt servanda”
can be considered as a fundamental rule for Civil Law.
32
Environmental Law Network International
because it is submitted to a specific “further treatment”) is illogical and false. The ECJ delivered the
same conclusion in the ARCO Chemie Case 28 . The
ECJ also admitted the disposal or recovery operations as “indicators” of the “intention to discard”,
but not as “proof of existence of waste” 29 . The defining element of waste is not the treatment process or technology. It is, instead, the negative effect
of the material on the environment or public
health, before that treatment. Thus, a material is
waste when a further treatment is needed or required in order to assure the public health and
the environmental protection. Assuming the legal
compliance of the treatment, it can be different or
similar to any other process or technology.
3.8 Mirroring the definition
Sometimes, the real meaning of a legal definition
can be found beyond the case law rulings and doctrine writings. The Zero Waste America 30 defines
waste as "a resource that is not safely recycled back
into the environment or the marketplace”. This is
one of the most inspired waste definitions ever produced. It is a clever expression of fundamental ideas
that can be developed as follows: (i) waste should be
considered as a resource; (ii) the expression “safely
recycled back” should be interpreted as a life cycle
concept, (iii) the expression “back into the environment” can be read as describing “disposal” operations; (iv) “back to the marketplace” can be read as
describing “recovery” operations. Unfortunately, the
definition from Zero Waste America defines by
exclusion (waste is something “that is not…”). A
positive version might be the following: Waste
means any resource before being safely recycled
back into the environment or the marketplace.
The expression “recycled back” is used in a broad
sense (including disposal and recovery). To put this
adapted definition in accordance with the European
legal definition, we can suggest the following
equivalent: Waste means any substance or object
before being safely disposed or recovered, according to legal provisions. The final expression
“according to legal provisions” has a double function. First, it can be read as “when a legal provision
requires the disposal or recovery”. In this sense, the
expression replaces the mention of the “act, obligation or intention to discard”. No waste exists before
a discard act, intention or legal obligation to dispose
or to provide a recovery. The second function refers
to the legal compliance of the disposal our recovery
operations. The above definition fits with the literal
legal definition. The legal wording is focused on the
28 ARCO Chemie, paragraphs 48 and 49.
29 ARCO Chemie, paragraphs, 69 and 70.
30 The Zero Waste America is an internet-based environmental research
organization, based in Philadelphia. www.zerowasteamerica.org
Environmental Law Network International
moment when the material starts to be waste (the
act, intention or obligation to discard). The “equivalent definition” is focused on the moment when the
material ceases to be waste. Combining both, the
(redundant) result is: waste means any substance
or object which the holder discards or intends or
is required to discard before being safely disposed or recovered, according to legal provisions.
4 The recovery and recycling definitions
Most of the efforts to define waste are based on a
“static” perspective: “what waste is”. A “dynamic”
perspective, focusing on “when” instead of “what”,
might help to clarify how the definition applies. In
fact, the literal definition focuses on the moment
when the material becomes waste. Similar efforts at
interpretation should clarify when the material
ceases to be waste. A good part of the controversies
around product/waste classifications derive from the
“holder perspective” approach. The same material is
useless for A and valuable for B. As pointed out by
Eva Pongrácz, the individual perception of “waste”
is useless for a legal definition 31 . Therefore, the
classification as waste or product cannot be solved
by the “holder approach”. The classification should
result from the material itself and its effect on the
environment and public health. That leads to the
recovery and recycling definitions. Once recycled
and back into the marketplace, the material is no
longer waste and, in principle, the legal provisions
concerning the waste management operations no
longer apply.
4.1 “Recovery” and “substitution”
The 91/156/EEC Directive introduced the fundamental terms of “disposal” and “recovery” (operations listed in Annexes IIA and IIB, in the amended
75/442/EEC Directive). The European Waste Law
survived for years without literal definitions of these
words! The “recovery” definition, as voted by the
European Parliament last February (2007), is the
following:
“Recovery means a waste treatment operation that meets the
following criteria:
1) results in waste substituting for other resources that would
have been used to fulfil that function or in it being prepared
for such use;
2) results in waste serving a genuine purpose by that substitution;
3) meets certain efficiency criteria, established in accordance
with Article 5 (2);
4) decreases the overall negative environmental impacts by
using waste as a substitute for other resources;
31 Eva Pongrácz (2002), Re-defining the Concepts of Waste and Waste
Management, p. 69: “Waste is a value concept, culturally construed and
subjective to the individual, be it the observer or de disposer. Consequently, if we associate waste with humans, we shall not ever be able to
define waste objectively”.
2/07
5) ensures that the products comply with the applicable Community safety legislation and Community standards;
6) gives a high priority to the protection of human health and
the environment and minimises the formation, release, and
dispersion of hazardous substances in the process.”
Recovery involves the referred “further treatment”
needed to convert waste into a (non-waste) product 32 . The difference between “recovery” and “disposal” is based on crucial aspects such as: the substitution (of other resources), the efficiency (used to
distinguish between energy recovery and disposal by
incineration) and the lower negative impact. Taking
into account that disposal and recovery have different legal regimes, the inclusion of definitions for
both operations seems to be a positive step. First of
all, the lists of operations in the Annexes IIA and IIB
of the Waste Directive are not definitions or “closed
lists”. Other operations may be considered as disposal or recovery. Second, there are operations that
can correspond to more than one of the operations
listed. In the Abfall Case, the ECJ had to decide
whether the deposit of slag and ashes in a disused
mine was a disposal operation (D2 of Annex IIA) or
a recovery operation (R5 of Annex IIB). Regarding
the wording of the Annexes, both classifications
were viable. In the absence of a definition, the Court
ruled that such cases should be assessed on a “caseby-case basis” and ruled that “such a deposit constitutes a recovery if its principal objective is that the
waste serve a useful purpose in replacing other
materials which would have had to be used for that
33
purpose” . The first lesson from the Abfall Case is
the need for legal definitions of disposal and recovery. The second lesson is the central concept to define recovery: the “substitution” 34 . As stated in
Paragraph 1 of the EP proposed definition, the recovery operation does not need to complete the
substitution itself. If the material is “prepared for
such use”, the recovery is complete. Technically, the
material is no longer waste. From the legal point of
view, it can remain as waste.
4.2 Recycling definitions and the “material approach”
Recycling is one of the listed recovery operations.
The Packaging Directive, 94/62/EEC 35 includes the
following definition (article 3º, 7): “recycling’ shall
mean the reprocessing in a production process of
the waste materials for the original purpose or for
32 Sometimes, legal wording is lost in translation. The Portuguese version of
this new definition (as published by the PE) suggests that recovery “originates a waste…”. This translation inverts the sense of the definition. Traduttore, tradittore…
33 Abfall, paragraph 71.
34 As pointed out by Prof. van Calster (2006), If ain’t broke, don’t fix it, in
elni review, 1-2/2006, p. 19.
35 http://eur-lex.europa.eu/LexUriServ/site/en/consleg
/1994/L/01994L0062-20050405-en.pdf
33
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other purposes including organic recycling but excluding energy recovery”. The same wording can be
found in Article 3º(e) of the WEEE Directive(2006/96/EC) 36 and in the Article 2º of the ELV
Directive (2000/53/EC) 37 . “Reprocessing” is another
word for “further treatment”. It does not necessarily
mean the substitution itself. The recycling operation
is completed when the material is in a condition to
be used as a substitute (secondary raw material).
This notion is widely accepted in legal and industrial
texts 38 . For the new Waste Framework Directive,
the Commission proposed a “new” recycling definition (article 3º g): "recycling" means the recovery of
waste into products, materials or substances
whether for the original or other purposes. It does
not include energy recovery”. The expression “waste
into products, materials or substances” is a good
wording (to express the conversion and, consequently, the distinction). The Recycling Coalition 39
proposed a more complete wording, but kept the
same expression: “Recycling” means the recovery of
waste back into a material cycle by processing waste
into products, materials or substances whether for
the original or other purposes. It does not include,
inter alia, energy recovery, processes for transformation into fuel, combustion or use as a source of
energy, including chemical energy, for processes
involving combustion 40 . This is a “material cycle
based definition”. As the Coalition said, “a recycling
definition should be material based so that a material remains available to undertake a new cycle
giving birth to a new material, product or substance.
Recyclability is the intrinsic property of a material
to remain available for a “new” material cycle for
producing products; this means that the input material is transferred either into the same or another
material, maintaining a maximum of structural integrity”. A similar “material cycle” concept was
expressed by Eurofer 41 , another industry organiza36 http://eur-lex.europa.eu/LexUriServ/site/en/consleg
/2002/L/02002L0096-20031231-en.pdf
37 http://eur-lex.europa.eu/LexUriServ/site/en/consleg /2000/L/02000L0053-
20050701-en.pdf
38 The Executive Order 13101, signed by President Bill Clinton in 14th of
September of 1998, defines recycling as follows: "Recycling" means the
series of activities, including collection, separation, and processing, by
which products or other materials are recovered from the solid waste
stream for use in the form of raw materials in the manufacture of new
products other than fuel for producing heat or power by combustion”. Executive Order 12101, Section 207. Text available at
http://www.ofee.gov/eo/13101.htm
39 The Recycling Coalition is formed by several industrial European Associations: the Confederation of European Paper Industries (CepI), the European Compost Network (ECN), the European Environmental Bureau
(EEB), the European Tyre Recycling Association (ETRA) and the Groupement Européen de l’Industrie de la Régénération (GEIR).
40 Recicling Coalition (2006), The ‘Recycling Coalition’s’ reaction to the
Commission proposal for a directive on Waste (COM (2005)667 final) The need for a clear recycling definition in the Waste Directive - , 27 April
2006. Text available at http://www.eeb.org/activities/waste/Recyclingdefinition-joint-statement-final-270406.pdf.
41 The European Confederation of Iron and Steel Industries.
34
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tion, with the following notions: “Recyclability is an
intrinsic property of a material in the same way as
its density or its calorific value; Recyclability is the
intrinsic ability of a material to stay in a “cycle” for
producing goods; this means that the input material
is being “stocked” and will be available to the current and future generations to produce goods necessary to preserve and enhance their prosperity; this
means that the input material is transferred either
into the same or another material and remains
available for a “new” material cycle 42 . The ISO
14201 Standard defines “recycled material” as a
“material that has been reprocessed from recovered
[reclaimed] material by means of a manufacturing
process and made into a final product or into a
component for incorporation into a product”; and
“Recycling” as “The intentional introduction of a
recycled material for further use in a man-made
material cycle“ 43 . The text proposed by the European Parliament, reflects the “material approach” but
the original expression “waste into products” is lost:
'recycling’ means the reprocessing of materials or
substances in wastes through a production process
whereby they produce or are incorporated in new
products, materials or substances whether for the
original or other purposes. It includes reprocessing
of organic material, but does not include, inter alia,
energy recovery, conversion for use as a fuel, processes involving combustion or use as a source of
energy, including chemical energy, or backfilling
operations 44 . The essence of the definition remains
the same. The recycling operation is completed
when the resulting material is, at least, able to
substitute primary raw materials.
4.3 “For the original or other purposes”
Recycling, as defined by EC Directives, necessarily
involves a “reprocessing in a production process”,
but does not necessarily involve a “repetition”. A
material is considered “recycled” as soon as it is
converted into its original state in order to be usable
for an identical purpose. It is also considered as
“recycled” as soon as it is converted into any other
state in order to be used for any other purpose. The
definition is extensive and comprehensive, as explained in the Mayer Parry Case 45 . The boundaries
of the concept are the “production process” requisite
and the exclusions (energy recovery, use as a fuel or
source of energy, backfilling), not the purpose. As
42 Eurofer (2005), The recycling concept in the context of the revision of the
Waste Framework Directive, May 2005, available at http://www.stahlonline.de/wirtschaft_und_politik/Umwelt_und_ Energiepolitik/EU_Recyclingstrategie/RECYCLING_FINAL_ EUROFER_POLICY_ PAPER_20MAY2005.PDF.
43 ISO 14021 Environmental labels and declarations – Selfdeclared environmental claims (Type II environmental labelling).
44 http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//ep//TEXT
+TA+P6-TA-2007-029+0+DOC+XML+V0//EN&language=EN.
45 Mayer Parry, paragraphs 66 to 69.
Environmental Law Network International
pointed out by Pongrácz, “the listed recovery and
disposal operations, with a few exceptions, appear
to be manipulating the structure and state rather
than the purpose” 46 . The recycled materials can be
“products, materials or substances”. Therefore, to
consider the recycling operation as completed, the
result may be, alternatively: (i) a product (in the
sense of a “final product”), entirely based on recycled material; (ii) a product which incorporates a
recycled material; (iii) a material or substance able
to be used in a subsequent converting operation
(production process) – namely a “secondary raw
material”. The legal concept of recycling includes all
of these possibilities and combinations of “state” and
“purpose”. The recycled material can have the
same state as the original or a different state, can
be usable for the same or other purpose and can
be a product or a raw material. Therefore, the
legal concept of recycling should be interpreted
widely.
4.4 Waste versus “secondary raw material”
There is a difference between a “recycled material”
(or “recyclate”, or “secondary raw material”) and a
product with “recycled content”. The “recycled
material” must result exclusively from recovery/recycling process according to legal provisions
(process listed, licensed recycler). The product with
“recycled content” can result from any other production process. Even if both processes occur in the
same place as an integrated process, the distinction
remains valid. Legislators tend to adopt restrictive
conditions when considering “secondary raw materials” as non-waste. The Netherlands legislation referred to by the Advocate General Jacobs in the
Tombesi case require three cumulative conditions:
(1) the material must be transported directly from
the producer to the person who will make further use
of it, (2) the material must be fully used in a production process, and (3) that process must be different
47
to any process comparable to disposal or recovery .
This is a very restrictive view with no solid grounds
in European law. There is no special reason for a
“direct transport” requisite. If the material is ready to
be used as a substitute for primary raw materials, it
means that no further recovery operation is needed
and, technically, it is no longer waste. In such a case,
the number of transporters is irrelevant. The third
condition is also too restrictive: if the “further processing” must be different to any comparable recovery process, then the materials will be waste in most
situations. In practical terms, the distinction between
waste and “secondary raw material” is important in
46 Eva Pongrácz (2002), Re-defining the Concepts of Waste and Waste
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order to identify who is the recycler. In legal terms,
the producer (who buys the “recyclate” and combines it with primary raw materials to produce its
products) is not a “recycler”. If the “recyclate” is
bought ready for use as secondary raw material, the
recycler is the supplier of that “recyclate”. This is
rather relevant, for instance, when applying the licence provisions. The recycler needs a special licence to develop recovery/recycling operation (provisions in waste legislation). The producer “only”
needs the regular licence for its industrial activity.
4.5 When does the material cease to be waste?
Taking all the above considerations into account, we
can list four conditions for the classification of when
material ceases to be waste:
Condition 1 – The recovery or disposal operation
must be completed;
Condition 2 – The resulting material must be intended for further use;
Condition 3 – The recovery or disposal operation
must be legal;
Condition 4 – The recovery or disposal operation
must assure an environmental advantage.
These four conditions are logically intertwined but,
for analytical purposes, they should be considered
one by one.
Condition 1 – The recovery or disposal operation
must be completed
Logically, if the disposal or recovery operation is not
completed, then the material is still waste. In the
Niselli Case, the decision was quite linear: a vehicle
from an Italian company was carrying ferrous materials proceeding from “the dismantling of machines
and vehicles or from collecting discarded objects” 48 .
It was clear that those discarded materials were
merely collected and unable to be used as a secondary raw material for steel production. As the recovery processed was not completed, the materials were
considered as waste. In practice, the notion of “completed” is difficult and interpretations can vary from
broad to stringent. The Mayer Parry Case, ruled on
2003, provides a good example. The ECJ had to
decide whether the material produced by Mayer
Parry (a reprocessor of metal packaging waste) was
still waste or a secondary raw material. The ECJ
started from the evidence of the operations performed by the company: collection, inspection, testing for radiation, sorting, cleaning, cutting, separation and shredding (fragmentation). The resulting
material (the so-called “grade 3B”) was suitable for
use in substitution of iron ore. All this fulfils two
requisites of the recycling definition: (i) the reproc-
Management, p. 68.
47 Paragaph 47 of the Advocate General Jacobs opinion, http://eur-lex.-
europa.eu/LexUriServ/LexUriServ.do?uri =CELEX:61994J0304:EN:HTML
48 Niselli, paragraphs 20 and 21.
35
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essing in a production process, and (ii) the ability of
the process to produce a new material or to manufacture a new product. But surprisingly, the ECJ ruled
that “the production of Grade 3B material does not
constitute reprocessing of metal packaging waste
with the objective of returning that material to its
original state, namely steel, and of reusing it in
accordance with its original purpose, namely the
manufacture of metal packaging, or for other purposes. In other words, the metal packaging waste
reprocessed by Mayer Parry does not undergo reprocessing in a production process conferring on the
Grade 3B material characteristics comparable to
those of the material of which the metal packaging
was composed” 49 . The expressions “original state”
and “material characteristics comparable” were used
to rule a stringent concept of recycling. To reinforce
this restrictive interpretation, the ECJ added the idea
of “direct use”: “Grade 3B material cannot therefore
be used directly for the manufacture of new metal
packaging. It follows that Grade 3B material such as
that produced by Mayer Parry cannot be regarded
as recycled packaging waste” 50 . Based on these
considerations, the ECJ ruled that the whole Mayer
Parry operation cannot be considered as a full recycling operation”. The “truly” recycling operation
was the subsequent process, where the “grade 3B”
material is converted in ingots, sheets or coils or
steel. Consequently, the “grade 3B” material is still
waste, its production does not complete the recycling operation, and the subsequent company (the
steel maker) is the “true” recycler. The material only
ceases to be waste when converted in ingots, sheets
or coils of steel 51 .
This restrictive interpretation is not in accordance
with the recycling definition included in the Packaging Directive 52 . The ECJ based its decision in a
completely different concept of recycling, where the
“recycled material” has to have the “original state”,
“comparable characteristics” and either suitability
for “direct use”, but none of these considerations
can be extracted from the legal definition. The
narrow interpretation leads to wrongful classifications of materials and operators, putting the waste
label onto recycled materials and the recycler label
on the steel maker! The fact that the so-called “grade
3B” from Mayer Parry still had “impurities which
remain to be removed” is a very weak and inconsequent “argument” because a similar situation can
occur in many other industrial processes based on
primary raw materials. The idea of recycling as a
return to an “original state” is rather confusing and
49 Mayer Parry, paragraph 83.
50 Mayer Parry, paragraphs 84 and 85.
51 Mayer Parry, paragraphs 87 to 91.
52 94/62/EEC, article 3º, 7; http://eur-lex.europa.eu/LexUriServ/site/en/con-
sleg/1994/L/01994L0062-20050405-en.pdf.
36
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misleading. In the Mayer Parry Case, the material in
question was metal packaging waste, namely used
cans. The well-known beverage cans are produced
from aluminium or steel. The steel cans are produced from tin-plated steel, supplied to can makers
in sheets or coils. What is the “original state”: the
cans, the tin-plated steel sheets, or the “original”
steel? If the recycling definition expressly admits the
reprocessing for other purposes, then the recycled
material may have different characteristics, suitable
for that different purpose! Therefore, the recycled
material does not have to have “comparable characteristics” to the original material. Packaging waste is
a good field for testing the Mayer Parry reasoning.
Glass bottle recycling is well developed in Europe.
The used bottles collected by bring systems (“bottle
banks”) or kerbside schemes are reprocessed in
special industrial facilities, where the glass waste is
crushed, cycloned (to remove papers and plastics),
sorted (magnetic sorting for ferrous metals, eddy
current for non-ferrous, other systems for stones and
porcelains, manual post-sorting). The resulting
“treated cullet” is then supplied to glass makers as a
secondary raw material. Between the “bottle banks”
and the sorting and treatment facility, the material is
waste. The treated cullet is a recycled material, a
secondary raw material suitable for the glass making
furnaces. If the Mayer Parry criteria is used for the
glass recycling chain, the treated cullet will remain
waste and the recycler is the glass maker! Normally,
glass makers combine primary raw materials (silica,
sodium oxide, calcium oxide and other minor ingredients) with the glass cullet (mainly from cullet
treatment facilities). If the ECJ criteria are followed
and the treated cullet is considered as waste, then the
raw material mix is also… waste! Again, the “original state” question is unanswerable. The “state” of
treated cullet differs from sand and oxides mix. The
“comparable characteristics” only occur in the glass
melt! A similar sort of absurdity can be found in
applying the same “recycling” notion to other packaging materials. The main purpose for wood packaging waste is the manufacture of wood panels. Between the original waste material (used pallets and
boxes) and the final application (wood chip panels),
there is an entire recycling operation which includes
selection, grinding, screening, chipping, etc. The
resulting material – the wood chip, a recycled material – is then supplied to wood panel makers. Plastics, with their impressive and increasing diversity,
can be recycled by different processes and technologies. Operations such as sorting, washing, cycloning,
metal detection, shredding, regrinding, extrusion,
cutting, or others, can be “organised” in different
combinations according to the final purpose of the
recycled material. Sometimes, the plastic “recyclate”
is an extruded granulate suitable to be used for the
same purpose (films, bottles). In other cases, the
same or other application can be manufactured com-
Environmental Law Network International
bining primary raw material (“virgin plastic”) with
sorted and regrind “recyclates” without extrusion.
Even mixed plastic waste (from different plastics
and different used products) can be reprocessed to
obtain new plastic materials or products. The strict
requisites of “comparable characteristics” and
“original state” make no sense to plastics recycling.
The difference between the “plastic waste” and the
“plastic secondary raw material” lies in the suitability of substituting “virgin plastics” for the same or
other purpose – just as is stated in the legal definition of recycling. To conclude, the material ceases,
technically, to be waste when, having been reprocessed in a production process, it is suitable to
be used as a product or as a substitute for primary raw materials, for the same or another
purpose. This “suitability for substitution” is not
affected by the technical need for further pretreatments in the subsequent production process
(even the “pure”, “virgin” and “primary” raw materials may need it). Therefore, the “comparable characteristics” requisite only fits with the legal definition of recycling if taken as a synonym of “suitability to substitute primary raw materials”. The “suitability” defines the moment when the material is
technically non-waste. To pass from the “technically
non-waste” to the “legally non-waste” state, the
remaining conditions should be verified.
Condition 2 – The resulting material must be intended for further use
The readiness to be used as secondary raw material
(or the “suitability for substitution”) is not enough to
qualify the material as “product” (non-waste) if the
material remains without purpose. Recycling is not a
“shortcut” to avoid or bypass the waste provisions.
Even if the recycling operation is completed, the
material remains as waste if the holder discards it
or intends to discard it. In pure logic terms, this is
not a “new” condition. All objects or substances fall
under the waste definition if the holder discards or
intends to discard it. Therefore, if a company, after
completing the recycling process, sends the material
to a landfill, then the material is waste.
Condition 3 – The recovery or disposal operation
must be legal
The disposal or recycling operation must be legal: if
any legal provision states that a specific material
should have a different destination (disposal, energy
recovery, etc.), it remains “waste” until that final
destination is completed. The same applies if, by
law, the reprocessing of the material is required to
include special operations or to reach special results
(such as decontamination), or if the use of recycled
material is forbidden for a specific purpose. The
legal compliance applies to the operation and to the
recycled material itself. As any other product, the
recycled material should be of legal use.
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Condition 4 – The recovery or disposal operation
must assure an environmental advantage
The reason for classifying a material as waste is the
same fundamental reason of the Environment Law:
to assure a high level of environmental protection. In
simple words: a material only ceases to be waste
when it reached and “environmentally acceptable
state”. The material only reaches that state when it is
“safely recycled back into the environment [disposed] or the marketplace [recovered]” 53 . The disposal or recovery operation must be environmentally
advantageous. That means that the material only
ceases to be waste if a positive balance results from
the performed operation. The level of environmental
protection should be emphasised in the interpretation
and application of the legal definition of waste 54 . In
this context, the “waste management hierarchy”
(reduction is better than recovery, recovery is better
than disposal, recycling is better than energy recovery) is one of the most intricate debates. In fact the
“hierarchy principle” cannot be taken as absolute or
isolated from the “high level of environment protection” condition. If a specific recycling process
causes more environmental impact than a safe disposal, the hierarchy does not apply. The “balance
approach” is always needed. Back to case law, we
can find some references to the “balance principle”.
In the ARCO Chemie Case, the ECJ expressed the
following opinion: “If a complete recovery operation does not necessarily deprive an object of its
classification as waste, that applies a fortiori to an
operation during which the objects concerned are
merely sorted or pre-treated, such as when waste in
the form of wood impregnated with toxic substances
is transformed into chips or those chips are reduced
to wood powder, and which, since it does not purge
the wood of the toxic substances which impregnate
it, does not have the effect of transforming those
objects into a product analogous to a raw material,
with the same characteristics as that raw material
and capable of being used in the same conditions of
55
environmental protection” . Again, we have to
disagree with the ECJ opinion. Contaminated wood
chips should be considered as waste, but not for the
reason expressed by the Court. If toxic substances
remain in the material, several reasons apply to consider it as waste. First, the holder is required to discard it. Second, the operation that does not remove
toxic substances should not be a legal “recovery”
operation. Third, the further use or purpose of the
contaminated product should be illegal. The ECJ
took a different line: the material is waste because it
53 We quote again the inspired definition from ZeroWaste America. See
section 3.8 of this article.
54 As pointed out by Prof. Van Calster, If ain’t broke, don’t fix it…, in elni
review, 1-2/2006, p. 18.
55 ARCO Chemie, paragraph 96.
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does not have the “same characteristics as the raw
material and [is] capable of being used in the same
conditions of environmental protection”. As pointed
out before, the “same characteristics” is not a condition for it to cease being waste. And the “new” condition of “same conditions of environmental protection” expresses a distorted view of the “environmental balance”. The ECJ compared the recycled
wood chips (contaminated) with primary raw material (not contaminated, presumably). But this balance has no basis in the recycling definition, neither
on the “high level of environmental protection principle”. The recycled product does not have to be
as “environmentally friendly” as the primary raw
material. It has to be environmentally better than
waste. Therefore, the balance should be made between waste and recycled product, not between the
recycled product and the raw material it substitutes!
The ECJ used the same doctrine of “comparable
characteristics” in the Mayer Parry Case. Instead of
comparing waste and recycled material, the ECJ
compared recycled material and “the material from
56
which the waste was derived” . The ECJ idea of
“same conditions of environmental protection” leads
to a very narrow concept of recycling and to a very
wide concept of waste, far beyond the legal definitions. If the recycling is restricted to operations
which result in a material with a comparable level of
environmental protection than the material from
which the waste was derived, then the recycling
operations will be drastically restricted to a very few
situations. The effect is the opposite of the scope of
waste law: to promote recycling and the market of
recycled materials. Therefore, the level of environment protection condition should be applied in accordance to the legal definitions: it only operates if,
besides the recycling process, the resulting material
poses an environmental impact or risk that determines an obligation to discard (to perform a further
treatment).
4.6 Back to the legal definition
The conversion from waste to product is not a strict
technical operation, but a combination of “physics”
and purpose. When the material is “ready to be
used as secondary raw material”, and there is no
discard option, intention or obligation, it is a
“product”, not a waste. It can be transported without special waste documentation, sold and processed
as any other product. The condition of it falling
outside of the waste definition is not the process
itself, but its result: the material is able to be safely
used or processed without causing harm to public
health or to the environment.
56 Mayer Parry, paragraphs 73 to 75.
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To conclude, we can list the cumulative conditions
to define recycling:
• reprocessing or “further treatment” of the material;
• readiness to be safely used as a product or processed as a secondary raw material, according to
public health and environmental provisions;
• exclusions: energy recovery, conversion for use
as a fuel, combustion or use as a source of energy,
including chemical energy, backfilling;
• absence of “discard” obligation, option or intention.
5 The by-product
Last February (2007), the European Parliament proposed the introduction of a new by-product definition in the Waste Framework Directive. The proposed text is the following:
“1. In order to be classified as a by-product and not
as waste, the following conditions shall be met by a
substance or object resulting from a production
process, the primary aim of which is not its production:
(a) further use of the substance or object is certain;
(b) the substance or object can be used directly
without any further processing other than normal
industrial practice;
(c) further use of the substance or object is an integral part of a production process or there is a market for it as a product; and
(d) further use is lawful, i.e. the substance or object
fulfils all relevant product, environmental and health
protection requirements for the specific application.
2. By [Two years after entry into force of this Directive] the Commission shall, on the basis of the conditions set out in paragraph 1, put forward a legislative proposal specifying the environmental and quality criteria to be met by a substance or object in
order to be classified as a by-product. The proposal
shall include an annex with a list of substances
and/or objects to be classified as by-products.
3. The list referred to in paragraph 2 shall be made
easily accessible for the economic operators and the
public (e.g. via the Internet).”
Anticipating the legislative task, the Commission
came up with an “interpretative communication on
57
waste and by-products” . The starting point of this
communication is the following: “In EU law, notions such as by-product or secondary raw material
have no legal meaning – materials are simply waste
or not”. This is true. The introduction of a by57 Available at http://eur-lex.europa.eu/LexUriServ /site/en/com/2007/com-
2007_0059en01.pdf.
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product definition does not constitute a substantial
change in the EU waste law. The by-product, as
defined in the proposed new Article 3º, is not a tertium genus. It is simply another defining provision to
reinforce the distinction between product and waste.
So, if by-product is not a third category, then it has
to be included as a sub-category of waste, or as a
sub-category of product.
5.1 Waste or product?
Unfortunately, the “interpretative communication”
confuses more than it helps 58 . Instead of a clear
distinction, the authors of the communication gave
very confusing “illustrative terms”:
“- Product – all material that is deliberately created
in a production process. In many cases it is possible
to identify one (ore more) “primary” products,
which is the principal material produced.
- Production residue – a material that is not deliberately produced in a production process but may or
may not be a waste.
- By-product – a production residue that is not a
waste”.
First of all, the use of the words “residue” and
“waste” have no relevant utility. Rather, they just
add more confusion, probably multiplied by the
“translation effects”. 59 Second, there is an unsolvable contradiction in the so-called illustrative terms.
If a “production residue” differs from a “product”
and if the by-product is part of the “production residue”, the by-product is not then a product. On the
other hand, the by-product is defined as “a production residue that is not waste”. Thus, the by-product
is neither a waste, nor a product! It is a tertium genus! This stands in clear contradiction with the previous “waste or not” assertion and does not fit with
the waste definition as stated and ruled. Following
the mentioned “illustrative terms”, the Communication adds: “Therefore, the first question to be asked
when determining whether a material is waste or not
is did the manufacturer deliberately choose to produce the material in question”. The word “deliberately”, used to distinguish between product and
“production residue”, leads to a misconception. In
fact, the production of by-products or wastes is not
58 That is to say that the opinions expressed in this communication “do not
represent a legal interpretation of the European Commission…”.
59 The authors of the Communication used the same terms as several ECJ
decisions (Palin Granit. AvestaPolarit, Petroleum Coke, Niselli). Most of
the European languages have several words for “waste”. “Waste” and
“residue” are frequently considered as synonyms. The corresponding
words differ according to languages. In English, French and Italian, different expressions are used: “waste/production residue”, “déchet/residu de
production”, “rifiuto/residuo di produzione”. In Portuguese and Spanish,
same word is used: “resíduo/resíduo de produção”, “residuo/residuo de
producción”. For languages that use the same word, the expression ”production residue” sounds like “production waste”. The idea of a “production
waste” that is not waste is rather confusing…
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the “primary” intention of the producer. But that
does not mean that waste and by-product are, by
definition, “accidental” effects. The producer must
know that the process causes by-products and/or
waste. In this sense, the waste and by-products are
“deliberately” produced. The word “deliberately”
doesn’t fit with the expression “primary aim”, proposed by the European Parliament (“substance or
object resulting from a production process, the primary aim of which is not its production”). There is
no need to use this strange notion of “intention to
produce the material”. The waste definition includes
a totally different notion: the intention to discard.
And this last one is sufficient to classify the material
as waste! The “decision tree” included as Annex II
of the Communication is inevitably contaminated by
the “illustrative terms”. To define by-product according to the waste definition, we have to go back
to the by-product definition proposed by the European Parliament. The proposed definition starts with
a “substance or object resulting from a production
process, the primary aim of which is not its production”. Before the verification of the subsequent conditions, this expression includes: (i) waste and byproducts, accidental or not; (ii) substances or objects
totally different from the “primary aim”, and (iii)
non-compliant (or sub-standard) products (even if
similar to the “primary aimed”). A by-product is
still a product. The notion given by the European
Parliament wording is enough to distinguish the byproducts from other products and poses no special
difficulty. The real question, and the purpose of the
proposed Article 3ºA, is to clarify the distinction
between by-product and waste. It should be regarded
as a further clarification of the distinction between
product and waste.
5.2 Symmetrical definitions
Before applying the conditions expressed in the
proposed article, we can test the general waste definition to find out if that definition is sufficient to
distinguish between waste and by-product. The Directive wording is “any substance or object which
the holder discards or intends or is required to discard”. Following this, and after a quick overview of
the ECJ rulings, we concluded that a material is
considered as waste when it needs further treatment
to be useful and/or harmless, according to the legal
provisions. To define a material as waste, only three
“tests” are needed: (i) if the holder discards the material, it is waste. No other condition needs to be
verified; (ii) if there is an obligation to discard, it is
waste. No other condition needs to be verified; (iii)
if the material needs a further treatment, other than
the regular practice, in order to be useful and harmless, it is waste. Applying the above tests to any
“non-intended” result from production or “noncompliant” object is enough to “isolate” waste from
by-products. No further legal definition is needed!
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The proposed Article 3ºA follows the inverse
method: defining by-product, instead of defining
waste. By pure logic (assuming that the waste definition remains unchanged), the definitions should be
quite symmetrical. The conditions proposed by the
European Parliament are the following: (a) further
use of the substance or object is certain; (b) the substance or object can be used directly without any
further processing other than normal industrial practice; (c) further use of the substance or object is an
integral part of a production process or there is a
market for it as a product; and (d) further use is
lawful, i.e. the substance or object fulfils all relevant
product, environmental and health protection requirements for the specific application. The symmetry is quite clear between test (ii) and condition (d),
both related with legal compliance. The same occurs
between test (iii) and condition (b), related to further
treatment/processing. Test (i) has no symmetrical
because, if the holder discards the material, there is
no “by-product question”. Condition (c) refers to a
further production process or a market. It means that
the by-product must be suitable for a normal process
(not a recovery operation) or acceptable “as a product”. It can be read as a redundancy (to be a byproduct, it must be a processed or accepted as a
product). Until this point, the proposed Article 3ºA
adds no substance to the general waste definition.
The conditions to define a material as a product (or
by-product) are exactly the inverse of the waste
definition.
5.3 “Certainty condition” and “leftover rock cases”
The crucial point is condition (a) – “further use of
the substance or object is certain”. The further use
must be a certainty, not a mere possibility. The difference between possible and certain further use (as
a product) is not easy to define, neither in general
legal terms, nor in case ruling. The proposed Article
3ºA calls for two “solutions”: a “legislative proposal
specifying the environmental and quality criteria to
be met by a substance or object in order to be classified as a by-product”, and “an annex with a list of
substances and/or objects to be classified as byproducts”. Both “solutions” can be ineffective and a
source of further elusion. When establishing that the
classification as by-product should be based on criteria to be specified by further legislation, the European Parliament is postponing the definition. On the
other hand, a list is not a “defining solution”. The
future list will not necessarily be a “positive list”. As
is the case with the European Waste List, the classification as by-product will remain dependent on
definition and criteria fulfilment. If the list contains
“residual categories” such as “other substances…”,
it will be an open list. Whatever the solution will be,
there is no way of having absolute certainty of the
“further uses”. In real cases, more questions arise.
For how long can the by-product be kept before the
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“further use”? Should the certainty condition be
applied as a “time” condition? In the Avesta Polarit
case, the ECJ referred to the following position of
the Finnish Environment Centre: “Since the residues
and by-products resulting from the mine are not as
such immediately reused or consumed, they are to be
regarded as waste within the meaning of the Law on
waste. In so far as the residues and by-products to
be discarded are recovered immediately as such
(inter alia by returning them to the mine), they are
60
not regarded as waste” . This statement identifies
certainty with immediate reuse. The material in
question was the leftover rock and ore-dressing sand
resulting from the mining operation. Avesta Polarit
submitted that those materials were by-products. The
Finnish authorities considered the leftover rock and
the ore-dressing sand as waste (and, consequently,
the places where they were stored as landfills!). The
Finnish Korkein hallinto-oikeus decided to stay the
proceedings and refer the waste classification question to the ECJ for a preliminary ruling. The definition proposed by the European Parliament is notably
inspired in Palin Granit and Avesta Polarit cases.
Thus, the “leftover rock cases” should be reviewed
in order to understand the by-product definition. The
leftover rocks and ore-dressing sands are usually
stored around the mining areas. Several uses exist
for such materials: they can be used to fill the mine,
to obtain aggregates, for public works (harbours,
breakwaters, embankments), and/or for landscaping.
The mining companies argue that they need those
materials to fill the mine. On the other hand, the
materials have to be stored for very long periods of
time (decades), and only part of the material is really
used for that purpose. Alternative purposes, like
harbours and breakwaters, might be more of an
eventual nature rather than being certain. Finally, the
further use of leftover rocks is similar or equivalent
to some operations listed in the Annexes IIA and IIB
of the 75/442/EEC Directive. The ECJ ruling can be
summarised as follows: first of all, the disposal or
recovery of leftover rocks is not enough to classify
61
the material as waste . Second, and based on previous judgements, the ECJ excluded the relevance of
the commercial value of the material 62 . Thus, the
economic value of the leftover rocks and oredressing sands is not an argument for excluding the
possible classification as waste. Then, and based on
the principle of “widely interpretation of the waste
definition” 63 the ECJ established the “certainty condition” to define the material as a by-product: “the
reasoning applicable to by-products should be confined to situations in which the reuse of the goods,
60 Avesta Polarit, paragraph 28.
61 Palin Granit, paragraph 27.
62 Palin Granit, paragraph 29.
63 About this principle, see section 3.6 of this article.
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materials or raw materials is not a mere possibility
but a certainty, without any further processing prior
to reuse and as an integral part of the production
process. It therefore appears that, in addition to the
criterion of whether a substance constitutes a production residue, a second relevant criterion for
determining whether or not that substance is waste
for the purposes of Directive 75/442 is the degree of
likelihood that that substance will be reused, without
any further processing prior to its reuse. If, in addition to the mere possibility of reusing the substance,
there is also a financial advantage to the holder in
so doing, the likelihood of reuse is high. In such
circumstances, the substance in question must no
longer be regarded as a burden which its holder
seeks to ‘discard’, but as a genuine product” the
reasoning applicable to by-products should be confined to situations in which the reuse of the goods,
materials or raw materials is not a mere possibility
but a certainty, without any further processing prior
to reuse and as an integral part of the production
64
process” . Therefore, this “certainty” is a crucial
condition for deciding whether the material is waste
or a by-product. If the reuse or further use is “certain”, then the material doesn’t have to be discarded
and, consequently, it is not waste. Therefore, the
“certainty” condition is not a “mere” case law creation, but a conceptual development which has a solid
base in the legal definition of waste. Assuming certainty as an implicit condition for excluding the
waste classification, the remaining question is how
to define “certainty”. The “leftover rock cases”
posed a special situation where the materials remain
stored for long periods of time before reuse. As
referred to above, the Finnish Environment Centre
stated that the materials only fall outside of the
waste definition if they are immediately used. The
ECJ ruled differently: “the reuse is therefore not
certain and is only foreseeable in the longer
65
term...” . Certainty is not a time-based concept.
It is not the time, by itself, that makes the further use
certain or uncertain. The waste definition may apply
even if the material is “immediately reused”. The
ECJ also rejected criteria such as the place where the
materials are stored or the conditions of storage 66 .
Uncertainty derives not from the amount of time, the
place or storage conditions, but from several concrete circumstances, such as: (i) the absence of a
permanent or continuous market for the material - it
has to be stored until the mine, or part of it, is
closed, or until the next harbour or embankment
works; (ii) the absence of a determined, or determinable, period of time before the further use; (iii) the
possible environment impact or health risk of the
long-term storage. The environmental impact of
long-term storage is not dependent on the composition of the materials stored or its harmful characteristics 67 . If the above-listed circumstances apply, the
further use is uncertain, which indicates that the
holder needs or is required to discard. Inversely, if
the material is destined for a permanent or continuous market for further use, if the period of storage is,
at least, determinable and if the storage is not, by
itself or by the harmful characteristics of the material, a source of environmental impact or health
risks, then the material falls outside of the waste
definition and can be considered a product or byproduct. In the Avesta Polarit Case, the ECJ ruled in
the same direction and pointed out that the reuse of
leftover rocks to fill the underground galleries of a
mine is not an “act of discarding”, but a normal
practice. The holder needs those materials for his
principal activity, and if there is no legal prohibition
of such reuse, then there is no obligation to discard,
and the material should not be considered as
68
waste . All the mentioned circumstances, such as
environmental impact, certainty of the further use
and time considerations, have to be considered case
by case. The Courts rule according to the evidence
provided. Should the material holder show evidence
of certain “further use” in order to manage the material as a by-product? Or should the burden of proof
be on the authorities? In the absence of burden of
proof provisions in the European Directives, the
answer should be based on national law 69 . The same
occurs in the case of time considerations: in the
absence of legal provisions establishing a maximum
storage time before further use, the waste classification does not simply result from time 70 . To conclude, the certainty condition for classifying the
material as a by-product is just the symmetric of
the “discard condition” for classifying the material as waste.
64 Palin Granit, paragraphs 36 to 37. Se also Petroleum Coke, paragraphs
67 Palit Granit, parapgraph 49.
68 Avesta Polarit, paragraphs 36 to 39.
35 and 36.
65 Palin Granit, paragraph 38.
66 Palit Granit, paragraph 42.
5.4 Further use other than normal industrial
practice
The European Parliament proposal includes a second
condition for classifying the material as a byproduct: “the substance or object can be used directly without any further processing other than
normal industrial practice”. This wording poses
several interpretation questions, related to the concepts of “direct use” and “other than normal industrial practice”. The fragility of normal/other than
69 ARCO Chemie, paragraph 70.
70 Avesta Polarit, paragraph 39.
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normal distinctions is evident 71 . In the Wallonie
judgement, the ECJ faced the same difficult distinction 72 . The distinctive element is not the operation
(recovery versus “normal”) but the environmental
risk of the material and the applicable legal provisions 73 . The intrinsic safety of the industrial process
does not exclude the classification as waste. Before
any further processing, the material is waste if it is
discarded, intended to be discarded or required to be
discarded. And it only ceases to be waste when a
legal recovery or disposal operation is completed. If
the material needs a further processing to be safely
returned back to the market, then it is waste. It
should be reprocessed by a legal recovery operation.
But what makes the material waste is not the operation itself, but the negative effect of the material on
the environment or public health before that treatment 74 . The expression “other than normal industrial practice” may be misleading. Recovery operations are, or should be, as “normal” as any other
industrial practice. The product, by-product and
waste classifications don’t derive from the technology used, but from the material itself and its possible
environmental impact. Therefore, the expression
“can be used directly without any further processing
other than normal industrial practice” should be
interpreted as “not discarded, intended to be discarded or required to be discarded”. Then, the material that doesn’t fit with the primary aim of the producer is a by-product if … it is not waste! By this
reasoning, we conclude that the second condition
proposed by the European Parliament is redundant.
5.5 The Petroleum Coke Case
The Petroleum Coke case, ruled in 2004, sheds some
light on the criteria used to define by-product as
non-waste. The material in question was the petroleum coke resulting from refining of crude oil and
used as fuel to produce energy. To answer the question of what is waste and what is not, the ECJ began
with the recognition that petroleum coke is not the
primary aim of an oil refinery, and gave relevance to
the fact that the refinery “does not wish to discard,
within the meaning of the first paragraph of Article
1(a) of Directive 75/442, but intends to exploit or
market on terms which are advantageous to it, in a
subsequent process, without prior processing” 75 . In
addition to this “discard test”, the Court tested the
“certainty condition” 76 . Then, the ECJ applied a
second condition: the further use without any further
Environmental Law Network International
processing. At this point, the ECJ referred to the
traditional doctrine 77 , but concluded that “those
elements are not necessarily conclusive, and
whether something is in fact waste must be determined in the light of all the circumstances, regard
being had to the aim of the directive and the need to
ensure that its effectiveness is not undermined” 78 .
The subsequent reasoning was a return to the “discard test”. The ECJ pointed out that, instead of an
obligation to discard, the use of petroleum coke as a
fuel for producing energy is normal practice, widely
accepted and even recommended. On these grounds,
the Court concluded that petroleum coke is not
waste 79 . Additionally, the ECJ pointed to the fact
that the production of coke was “the result of a technical choice… specifically intended for use as fuel”,
and not a material intended to be discarded. Then,
the Court concluded that the further use of the material is irrelevant 80 . The final conclusion (petroleum
coke is not waste) was ruled without the need for
distinguishing between product and by-product. The
ECJ considered all the hypotheses: (i) if the primary
aim of refinery is to produce refined oil, then the
petroleum coke could be considered as a by-product;
(ii) if the production of petroleum coke is an intended option, then the petroleum coke is a genuine
product (and hence the primary aim of a refinery is
to produce fuel from crude oil). Instead of discussing
what is a “primary aim”, the ECJ got right to the
essential point: the waste definition. Another point
to remark upon in the Petroleum Coke case is the
irrelevance of how the holder perceives the material 81 . From the Petroleum Coke Case, some “lessons”
can be extracted: First, the waste classification
should be based on the literal definition (act, obligation or intention to discard). Second, the “certainty
condition” should be tested within the waste definition, not as an additional condition. Third, the
further use (even when it is a “standard recovery
process”) is irrelevant for the purpose of classification. And, fourth, a by-product definition is not
needed in order to decide whether the material is
waste or non-waste.
6 Conclusion
Most of the time, the over-regulation does not add
certainty nor decrease the controversy. If appropriate
answers are difficult to find, the solution does not
77 “Other evidence of the existence of waste […] may lie in the fact that the
71 As pointed out by the Advocate General Jacobs in the Tombesi Case
72
73
74
75
76
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Opinion, paragraph 54. http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:61994C0304:EN:HTML
Wallonie, paragraph 33.
Wallonie, paragraph 30.
See section 3.7. of this article.
Petroleum Coke, paragraph 35.
Petroleum coke, paragraph 36.
78
79
80
81
treatment method for the substance in question is a standard waste
treatment method or that the undertaking perceives the substance as
waste and from the fact that, in the case of a production residue, it can be
used only in a way that involves its disappearance or that its use must
involve special measures to protect the environment”. Petroleum Coke,
paragraph 39.
Petroleum coke, paragraph 40.
Petroleum Coke, paragraphs 41 to 44.
Petroleum Coke, paragraph 46, first part..
Petroleum Coke, paragraph 46, final part.
Environmental Law Network International
necessarily involve more definitions. The art of
telling stories within stories may result in master
epic poems like “Orlando Furioso” 82 or “Os
Lusíadas” 83 , but the labour of making definitions
over definitions has its limits and might be too complex to be practicable. The introduction of new
wordings and concepts might be a symptom of
forthcoming complexities. The administrative conflicts and the court cases will probably have to deal
with complex definitions, distinctions and procedural questions. Instead of a clarification of its basic
definitions, the EU waste law risks becoming more
uncertain. Legal clarity does not result automatically
from legal definitions. On the one hand, a wide interpretation of the waste definition can lead to excessive costs and to abuse of authority. On the other
hand, a narrow interpretation can lead to unacceptable environmental consequences. As always, reason
lies between these two extremes. After some decades of case-by-case ruling, we have to conclude
that the legal definition, based on “act, obligation or
intention to discard”, is workable without “corrective interpretation”. Besides, no alternative definition has arisen. Therefore, we have to agree with
Prof. van Calster: “The Commission at any rate
would seem to have decided that the core definition
of waste, with its focus on the notion of ‘discarding’,
may be faulty but nevertheless lacks alternatives.
Case-law of the ECJ in particular has left a degree
of clarification which most likely would be difficult
84
to meet by any possible alternative” .
The legal definition of waste in the European waste
law should stay as it is. This is “our” first conclusion. Second, and also resulting from case law, is the
need for legal definitions for disposal and recovery
at a European level based on the notions of a safe
and efficient return of materials into the environment
(disposal) or into the marketplace (recovery). The
definition proposed by the European Parliament,
grounded in ECJ rulings and coherent with the waste
definition, seems to be a positive step ahead. It is
time to replace the ineffective practice of “defining”
disposal and recovery by simple reference to Annexes.
Our third conclusion concerns the by-product definition. Considering the waste definition resulting from
legal wording and ECJ jurisprudence, the need for a
by-product definition is far from being demonstrated. Before adding more definitions, criteria and
lists, alternative and simpler solutions must be studied. If there are materials managed as by-products
that should be managed as waste, then simpler ways
should be found to solve the problem. Legislators
2/07
can adopt provisions such as: (i) maximum delay
before further use as a product (the by-product converts to waste if it remains with no “further use”
after a certain amount of time); (ii) discard (recovery, disposal) obligations. None of these requires a
new definition. It is rather a question of making the
existing definitions work.
82 The epic masterpiece of Ludovico Ariosto (1516).
83 The epic masterpiece of Luis Vaz de Camões (1572).
84 Gert van Calster (2006), If ain’t broke, don’t fix it…, in elni review, 1-
2/2006, p. 22.
43
2/07
The ECJ “Waste Definition Cases”
Vessoso / Zanetti,
Joined cases C-206/88 and C-207/88,
European Court reports 1990 p. I-01461
http://eurlex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:61988J0206:EN:HTML
Zanetti
Case C-359/88; European Court reports 1990, p. I-01509
http://eur-lex.europa.eu/LexUri
Serv/LexUriServ.do?uri=CELEX:61988J0359:EN:HTML
Commission vs. FRGermany
Case C-422/92; European Court reports 1995, p. I-01097
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?
uri=CELEX:61992J0422:EN:HTML
Tombesi
Joined cases C-304/94, C-330/94, C-342/94 and C-224/95.
European Court reports 1997, p. I-03561
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?
uri=CELEX:61994J0304:EN:HTML
Wallonie
Case C-129/96; ECr 1997, p. I-07411;
http://eur-lex.europa.eu/LexUri
Serv/LexUriServ.do?uri=CELEX:61996J0129:EN:HTML
ARCO Chemie
Joined cases C-418/97 and C-419/97; ECr 2000, p.I-04475
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri
=CELEX:61997J0418:EN:HTML
Abfall
Case C-6/00; European Court reports 2002, p. I-01961
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?
uri=CELEX:62000J0006:EN:HTML
Palin Granit
Case C-9/00; European Court reports 2002 p.I-03533
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?
uri=CELEX:62000J0009:EN:HTML
Mayer Parry
Case C-444/00
http://eur-lex.europa.eu/LexUriServ
/LexUriServ.do?uri=CELEX:62000J0444:EN:HTML
AvestaPolarit
Case C-114/01
http://eur-lex.europa.eu/LexUriServ
/LexUriServ.do?uri=CELEX:62001J0114:EN:HTML
Petroleum coke (Saetti /Frediani)
Case C-235/02
http://eur-lex.europa.eu/LexUriServ
/LexUriServ.do?uri=CELEX:62002O0235:EN:HTML
Contaminated Soil
Case C-1/03
http://eur-lex.europa.eu/LexUriServ
/LexUriServ.do?uri=CELEX:62003J0001:EN:HTML
Niselli
Case C-457/02
http://eur-lex.europa.eu/LexUriServ
/LexUriServ.do?uri=CELEX:62002J0457:EN:HTML
Food residues
Case C-195/05 (pending)
http://eur-lex.europa.eu/LexUriServ
/LexUriServ.do?uri=CELEX:62005C0195:EN:HTML
Spanish Manure
Case C-416/02
http://eur-lex.europa.eu/LexUriServ
/LexUriServ.do?uri=CELEX:62002J0416:EN:HTML
44
Environmental Law Network International
The Öko-Institut (Institut für angewandte Ökologie - Institute for Applied Ecology, a registered nonprofit-association) was founded in
1977. Its founding was closely connected to the conflict over the building of the nuclear power plant in
Wyhl (on the Rhine near the city of
Freiburg, the seat of the Institute).
The objective of the Institute was
and is environmental research independent of government and industry,
for the benefit of society. The results
of our research are made available
of the public.
The institute's mission is to analyse
and evaluate current and future
environmental problems, to point out
risks, and to develop and implement
problem-solving
strategies
and
measures. In doing so, the ÖkoInstitut follows the guiding principle
of sustainable development.
The institute's activities are organized in Divisions - Chemistry, Energy
& Climate Protection, Genetic Engineering, Sustainable Products &
Material Flows, Nuclear Engineering
& Plant Safety, and Environmental
Law.
The Environmental Law Division
of the Öko-Institut:
The Environmental Law Division
covers a broad spectrum of environmental law elaborating scientific
studies for public and private clients,
consulting governments and public
authorities, participating in law drafting processes and mediating stakeholder dialogues. Lawyers of the
Division work on international, EU
and national environmental law,
concentrating on waste management, emission control, energy and
climate protection, nuclear, aviation
and planning law.
Contact
Freiburg Head Office:
P.O. Box 50 02 40
D-79028 Freiburg
Phone +49 (0)761-4 52 95-0
Fax +49 (0)761-4 52 95 88
Darmstadt Office:
Rheinstrasse 95
D-64295 Darmstadt
Phone +49 (0)6151-81 91-0
Fax +49 (0)6151-81 91 33
Berlin Office:
Novalisstrasse 10
D-10115 Berlin
Phone +49(0)30-280 486 80
Fax +49(0)30-280 486 88
www.oeko.de
The University of Applied Sciences
in Bingen was founded in 1897. It is
a practiceorientated academic institution and runs courses in electrical
engineering, computer science for
engineering, mechanical engineering, business management for engineering, process engineering, biotechnology, agriculture, international
agricultural trade and in environmental engineering.
The Institute for Environmental Studies
and
Applied
Research
(I.E.S.A.R.) was founded in 2003 as
an integrated institution of the University of Applied Sciences of Bingen. I.E.S.A.R carries out applied
research projects and advisory services mainly in the areas of environmental law and economy, environmental management and international cooperation for development
at the University of Applied Sciences
and presents itself as an interdisciplinary institution.
The Institute fulfils its assignments
particularly by:
• Undertaking projects in developing countries
• Realization of seminars in the
areas of environment and development
• Research for European Institutions
• Advisory service for companies
and know-how-transfer
Main areas of research:
• European environmental policy
o Research on implementation of
European law
o Effectiveness of legal and economic instruments
o European governance
• Environmental advice in developing countries
o Advice for legislation and institution development
o Know-how-transfer
• Companies and environment
o Environmental management
o Risk management
Contact
Prof. Dr. jur. Gerhard Roller
University of Applied Sciences
Berlinstrasse 109
D-55411 Bingen/Germany
Phone +49(0)6721-409-363
Fax +49(0)6721-409-110
roller@fh-bingen.de
www.fh-bingen.de
The Society for Institutional Analysis
was established in 1998. It is located
at the University of Applied Sciences
in Darmstadt and the University of
Göttingen, both Germany.
The sofia research group aims to
support regulatory choice at every
level of public legislative bodies (EC,
national or regional). It also analyses
and improves the strategy of public
and private organizations.
The sofia team is multidisciplinary:
Lawyers and economists are collaborating with engineers as well as
social and natural scientists. The
theoretical basis is the interdisciplinary behaviour model of homo
oeconomicus institutionalis, considering the formal (e.g. laws and contracts) and informal (e.g. rules of
fairness) institutional context of individual behaviour.
The areas of research cover
• Product policy/REACh
• Land use strategies
• Role of standardization bodies
• Biodiversity and nature conversation
• Water and energy management
• Electronic public participation
• Economic opportunities deriving
from environmental legislation
• Self responsibility
sofia is working on behalf of the
• VolkswagenStiftung
• German Federal Ministry of Education and Research
• Hessian Ministry of Economics
• German Institute for
Standardization (DIN)
• German Federal Environmental
Agency (UBA)
• German Federal Agency for Nature Conservation (BfN)
• Federal Ministry of Consumer
Protection, Food and Agriculture
Contact
Darmstadt Office
Prof. Dr. Martin Führ – sofia
University of Applied Sciences
Haardtring 100
D-64295 Darmstadt/Germany
Phone +49(0)6151-16-8734/35/31
Fax +49(0)6151-16-8925
fuehr@sofia-darmstadt.de
www.h-da.de
Göttingen Office
Prof. Dr. Kilian Bizer – sofia
University of Göttingen
Platz der Göttinger Sieben 3
D-37073 Göttingen/Germany
Phone +49(0)551-39-4602
Fax +49(0)551-39-19558
bizer@sofia-darmstadt.de
www.sofia-research.com
elni_US_2007_02_4c-print
19.10.2007
16:10 Uhr
Seite 1
ISSN 1618-2502
elni
In many countries lawyers
are working on aspects of
environmental law, often as
part of environmental initiatives and organisations or as
legislators. However, they
generally have limited contact with other lawyers abroad, in spite of the fact that
such contact and communication is vital for the successful and effective implementation of environmental
law.
Therefore, a group of
lawyers from various countries decided to initiate the
Environmental Law Network International (elni) in
1990 to promote international communication and cooperation worldwide. Since
then, elni has grown to a
network of about 350 individuals and organisations from
all over the world.
Since 2005 elni is a registered non-profit association
under German Law.
elni coordinates a number
of different activities in
order to facilitate the communication and connections
of those interested in environmental law around the
world.
The Coordinating Bureau was originally set up at and financed by ÖkoInstitut in Darmstadt, Germany, a nongovernmental, non-profit research
institute.
Three organisations currently share
the organisational work of the network:
Öko-Institut, IESAR at the University of
Applied Sciences in Bingen and sofia,
the Society for Institutional Analysis,
located at the University of Darmstadt.
The person of contact is Prof. Dr. Roller
at IESAR, Bingen.
C o o rd i n a t i n g B u re a u
The elni Review is a bi-annual, English language law review. It publishes
articles on environmental law, focussing
on European and international environmental law as well as recent developments in the EU Member States. It is
published by Öko-Institut (the Institute
for Applied Ecology), IESAR (the Institute for Environmental Studies and
Applied Research, hosted by the University of Applied Sciences in Bingen) and
sofia (the Society for Institutional
Analysis, located at the University of
Darmstadt). The Coordinating Bureau is
currently hosted by the University of
Bingen. elni encourages its members to
submit articles to the Review in order to
support and further the exchange and
sharing of experiences with other members.
elni Review
elni conferences and fora are a core
element of the network. They provide
scientific input and the possibility for
discussion on a relevant subject of environmental law and policy for international experts. The aim is to gather
together scientists, policy makers and
young researches, providing them with
the opportunity to exchange views and
information as well as to develop new
perspectives.
e l n i C o n f e re n c e s a n d F o r a
The aim of the elni fora initiative is to
bring together, on a convivial basis and
in a seminar-sized group, environmental
lawyers living or working in the Brus-
sels area, who are interested in sharing
and discussing views on specific topics
related to environmental law and policies.
• Access to justice in Environmental
Matters and the Role of NGOs, de
Sadeleer/Roller/Dross, Europa Law
Publishing, 2005.
• Environmental Law Principles in
Practice, Sheridan/Lavrysen (eds.),
Bruylant, 2002.
• Voluntary Agreements - The Role of
Environmental Agreements, elni (ed.),
Cameron May Ltd., London, 1998.
• Environmental Impact Assessment European and Comparative; Law and
Practical Experience, elni (ed.),
Cameron May Ltd., London, 1997.
• Environmental Rights: Law, Litigation
and Access to Justice, Deimann /
Dyssli (eds.), Cameron May Ltd.,
London, 1995.
• Environmental Control of Products
and Substances: Legal Concepts in
Europe and the United States,
Gebers/Jendroska (eds.), Peter Lang,
1994.
• Dynamic International Regimes: Institutions of International Environmental
Governance, Thomas Gehring; Peter
Lang, 1994.
• Environmentally Sound Waste Management? Current Legal Situation and
Practical Experience in Europe,
Sander/ Küppers (eds.), P. Lang, 1993
• Licensing Procedures for Industria
Plants and the Influence of EC Directives, Gebers/Robensin (eds.), P. Lang,
1993.
• Civil Liability for Waste, v.
Wilmowsky/Roller, P. Lang, 1992.
• Participation and Litigation Rights of
Environmental Associations in
Europe, Führ/ Roller (eds.), P. Lang,
1991.
No 2/2007
Publications series
On the elni website www.elni.org one
finds news of the network and an index
of articles. It also indicates elni activities
and informs about new publications.
Internship possibilities are also published online.
E l n i We b s i t e : e l n i . o r g
elni, c/o Institute for Environmental Studies and Applied Research
FH Bingen, Berliner Straße 109, 55411 Bingen/Germany
www.elni.org
ENVIRONMENTAL
LAW NETWORK
INTERNATIONAL
RÉSEAU
INTERNATIONAL
DE DROIT DE
L´ENVIRONNEMENT
INTERNATIONALES
NETZWERK
UMWELTRECHT
Ralph Hallo
The Aarhus Convention in operation
Luc Lavrysen
Aarhus related cases of the Belgian Constitutional Court
Thomas Alge/Dieter Altenburger
Highest court abolishes EIA-permit
˘
´
´
Public Interest Litigation
in Environmental
Matters
Dora Schaffrin/Michael Mehling
Irina Zodrow/Cathrin Zengerling
Opening the Doors to Justice - Strengthening Public Access
Christoph Holtwisch
Asia-Pacific Partnership on Clean Development and Climate
Carlos da Silva Campos
Waste, Product and By-product in EU Waste Law